Hall v. Thayer , 71 Mass. 523 ( 1855 )

Shaw, C. J.

This is a petition by Charles Hall for partition of the premises described. He claims as tenant in tail under his father, Benjamin Hall, and that his father, Benjamin Hall, took the estate as heir in tail of his mother, Elizabeth Hall, wife of Hugh Hall, who died in 1773, having survived his wife some years. The petitioner further insists that Elizabeth Hall took an estate tail under the will of her grandmother, Susannah Jacobs, who died in 1730. The claim of the petitioner then may be stated thus: That his grandmother, Elizabeth Hall, being seized of the premises as of an estate tail, died in the lifetime of her husband, leaving a son, Benjamin Hall, father of the petitioner, and two daughters, his only children and heirs. The son, long after the death of his father, Hugh Hall, in 1795 made a conveyance by deed of one third of the estate, which, by mesne conveyances, has come to the tenants. The two sisters also, probably supposing they were tenants in fee, with their brother, of one third each, severally conveyed; and if their deeds passed any estate, it has come to the tenants or some of them. But the petitioner maintains that his father, Benjamin Hall, took the whole as heir in tail of his mother ; that her daughters therefore took nothing, and could pass nothing by their deeds ; and of course his father, after conveying away one third, held two thirds as tenant in tail, which, on his decease, came to the petitioner, as heir in tail of his father. From this view it is manifest that the petitioner’s claim of title wholly depends upon establishing the position, that the devise of Susannah Jacobs vested an estate tail in Elizabeth Hall, wife of Hugh ; that she died seized of the like estate, which, subject to the tenancy by the curtesy of the husband, vested in Benjamin as heir in tail; that the estate tail has never been barred as to two thirds, but, by the form of the gift, came to the petitioner as tenant in tail.

We have not thought it necessary to examine the evidence to show that Susannah Jacobs, the testator, had not an estate in fee in the premises. She died in 1730, having devised to Mrs. Hall an estate ; the devisee entered and enjoyed the estate, and lived about forty years ; it does not appear that she, or any of her descendants, has been disturbed by any one having a paramount title, and therefore we think it must be presumed that Mrs. Jacobs had an estate in fee.

Nor do we doubt that her devise created an estate tail. It was as follows: “ I give and bequeath to my granddaughter Elizabeth Hall, wife of Mr. Hugh Hall of Boston, the house ” &c. “ and to the heirs of her body lawfully begotten, and to their heirs and assigns forever.” The first clause clearly creates an estate tail in the first taker, which is not enlarged by the second clause to heirs general. The very nature of an estate tail is, to pass by descent to a limited class of heirs ; and so the latter clause, “ their heirs and assigns,” must be held to mean heirs of the limited class, capable of taking such estate ; in other words, heirs in tail. Wight v. Thayer, 1 Gray, 284.

Nor do we think that, if Benjamin Hall took an estate tail from his mother, his deed of 1777 to Boies and Makepeace operated in law as a discontinuance, so as to bar the petitioner as remainderman; because it was not and did not purport to be a conveyance of the land, Fut of his right and interest in it; and that was previous to St. 1791, c. 60, authorizing a tenant in tail in possession to bar the entail, and to defeat all remainders expectant thereon, by a deed executed in the manner indicated by the statute.

But, for the purpose of quieting titles, the law has a very tender regard for long continued, uninterrupted and unquestioned possession, and will resort to every reasonable presumption to give it effect. The strength of this principle of law is manifest everywhere ; but it is more especially forcible where a town or seaport in a new country is making rapid progress, where it is for the interest of the public, as well as of individual owners, to make_ large outlays in useful and expensive improvements on real estate, and where it often happens that, after the lapse of comparatively a few years, the price of land is advanced ten, fifty or a hundred fold. Entailed estates, we believe, have never been in much favor in this government at any period, though they have always been tolerated; but always under the well known rule, that they might at any time be barred and determined by a common recovery, and, since 1792, by a simple deed.

According to the theory of the petitioner, here was an estate tail created by the will of Mrs. Jacobs as long ago as 1730. Mr. and Mrs. Hugh Hall might, at any time during their joint lives, have barred this entail, by suffering a common recovery; and as a free, unclogged estate in fee simple, on land very near the harbor, would be more beneficial than an estate tail, they had a motive and an interest to effect that change. Benjamin Hall, from the death of his father in 1773, if not under disability, might have suffered a recovery before 1792, or after that time have barred the entail by his deed.

The fact, that Benjamin Hall and his sisters all acted under the belief that they took the estate as an estate in fee, in equal thirds, if it was a fact, as tlie deeds seem to indicate : and if at the time when it was most important to these heirs and their advisers to know the truth, and when it was most capable of being ascertained, it was believed that either Hugh Hall or his wife Elizabeth held the estate in fee simple; these tend to strengthen the conclusion that, by some legal act, the estate tail has been barred, and an estate in fee, either in one or both of them, legally acquired.

It appears by the report, that evidence was offered at the trial to show that the records of the courts of common pleas, from 1751 to 1776, have been lost, in some of which such a common recovery might have been recorded.

These, and perhaps other circumstances of like kind, combined with long and uninterrupted possession, may be such as to warrant a presumption of the fact that, either by common recovery or otherwise, this estate was barred before the death of Benjamin Hall in 1830.

The court are therefore of opinion that the case should be left to a jury upon the evidence, with proper instructions, to determine upon the presumption whether the estate tail was or was not barred before March 1830, the time of the death of the petitioner’s father.

After the court had come to this result, and before another trial, the case was settled by the parties.